Lwandile Fikeni vs. Wits Vuvuzela

This ruling is based on the written submissions of Mr Lwandile Fikeni and those of Prof Franz Krüger, head of Journalism at Wits University, for the Wits Vuvuzela (WV) publication.

Fikeni is complaining about a story in WV of 19 May 2017, headlined Wits student accused of assault by two women.

Complaint

Fikeni complains that the story (in which he was accused of having caused two women physical and emotional harm) has identified him, even though there was no legal process underway. He asks for the story to be withdrawn until he appears in court, or for his name to be removed from the story.

The reportage, he says, has tarnished his dignity.

The text

The article, written by Patricia Aruo, said that two women had accused Fikeni, a former Ruth First Fellow and a prominent arts journalist on the Wits campus, of physical and emotional abuse.

She reported that the first allegations against Fikeni were made on social media the previous week by Ms Chumile Goqwana, his former partner.

These comments were reportedly made during Twitter discussions “about intimate partner violence following the much-publicised murder of Karabo Mokoena and revelations of a spate of violent incidents against young women across the country”. Aruo related three alleged incidents of physical and emotional abuse.

Neo Maditla, a freelance journalist in Johannesburg, also reportedly alleged that Fikeni had abused her.

Aruo reported that both women had decided not to lay charges against him, and that Fikeni had declined to comment.

The arguments

Wits Vuvuzela responds

Fikeni identified

Krüger’s arguments justifying the identification of Fikeni boil down to the following:

· The two accusers gave their names on the record, along with detailed allegations against Fikeni. “We believe that the fact that two women were willing to go on the record with their stories, and that they provided considerable detail, provided enough basis to publish. It should be remembered that there are extensive social obstacles to people going public in this way, as they are often not believed, and face unjustified challenges and questions about their own behaviour… The fact that these women were brave enough to come forward needs to matter”;

· WV twice gave Fikeni an opportunity to respond, which he declined. On one occasion he said, “I’m currently speaking to a lawyer about that. So I can’t comment now until advised.” Krüger says this offer still stands, on condition that it should be brief and to the point, and does not contain counter-accusations or fresh material to which the women making the claims against him would be entitled to respond. “We do not believe it would be in anyone’s interests to open a round of he said, she said reporting”;

· Fikeni does have the legal mechanism of a defamation suit open to him, even though that is an onerous route to take;

· Fikeni is a prominent member of the university community, as a well-known arts journalist and a former Ruth First scholar – and as such, there is clear public interest in the case; and

· The matter first emerged on social media, where he was identified – his identity remains in the public domain on those platforms.

Krüger refers to the public discussion after singer Jennifer Ferguson had accused prominent politician and sports administrator Danny Jordaan of raping her. Initial reports did not include his name, he says, but it rapidly emerged and his identity is now public knowledge. Much of the commentary on that issue is relevant to this case, he argues.

· “We believe that we have a duty to report these instances of (GBH), particularly when it involves prominent members of our university community as it lays bare how widespread the problem is. It is part of our function to hold perpetrators to account. In 2013, reports of this nature by our newspaper led to a university-wide investigation which resulted in the dismissal of several lecturers who were subsequently found to be guilty of sexual harassment”; and

· “We would argue that the media does (sic) not have a duty to protect the reputation of an alleged perpetrator of GBH where alleged victims have put their names on the record and the alleged perpetrator has offered no rebuttal to the allegations levelled against them. In addition, it should be remembered that many are repeat offenders, and having their names in the public domain serves to continue to hold them to account.”

Krüger adds WV accepts that these issues create difficult ethical challenges, and that Fikeni also has rights that need to be protected. “In this case, our offer to him to respond briefly stands. However, we believe that the ruling should take into account the broader social interest in fighting the scourge of GBH and ensure that respect for the voices of the women involved is maintained. It is they who are the victims here.”

Waiting for a court case

Krüger argues that the media are not bound to report only matters which have come before a court. “There is nothing in the code or in precedent suggesting such an approach. From rape claims levelled against the president to claims of corruption in Eskom, present journalism is full of examples. Waiting until matters come before court is unthinkable.”

Amending the story

Krüger argues the removal of Fikeni’s name from the story would not assist him – cached versions of the original report remain accessible even if the report is changed. He also argues the suggestion that his name be removed from the online article “is simply beyond the Ombud’s powers”.

In response to a suggestion by the Public Advocate of adding a sentence to the story saying no charge has been laid yet, he says WV is concerned it might create a precedent which commits it to updating statements from time to time. “I think there is an obligation to report the story to conclusion, which would mean if there is a new development we should report it. But it not normal practice to report that there is no new development.”

He also says that WV cannot make a statement that no action has been undertaken with any certainty, and adds that Fikeni has confirmed that no charges were laid – “and as such the material facts reported on in this story have not changed”.

Fikeni replies

Fikeni says it is impossible to clear his name as the story stands, adding that WV has never verified its information, as it should have.

For example, he asks if WV ever ascertained whether he had shared an apartment with Goqwana (which he says he did not), or if the newspaper called her brother to confirm whether he had ever received a call to come and save her from his alleged abuse (as she has alleged in one of the tweets).

He also says e-mails from 2016 showed that he had never been a threat to Maditla at any point (the allegations pertained to 2013).

He points out WV says in its response that the justice system has been failing victims – yet it still advises him to pursue a lawsuit against his accusers. He says he does not want to be the one seen to “mount an attack”.

“[I] find the entire situation to be more complex than the paper sets it out to be. If I go public I'd be seen as calling my alleged victims liars and if I sue them I’m liable to be called a bully. And if the details I’ve shared come to light it will cast doubt on victims as well as further tarnish my reputation. This is why my appeal is for the paper to either remove my name or at least admit that they never conducted any investigation in the manner.”

Fikeni says the statement that he was a prominent figure at the university suggested that he had held some power over his alleged victims. “The allegations claim that I was abusive in 2008 (I was a student then) and 2013. And yet I only became an art journalist in 2015 (when I was awarded the arts journalism award) and a Ruth First fellow in 2016.”

He denies that he as ever held any power over his accusers.

Analysis

General comment

WV did not object to addressing this complaint, even though it was lodged out of time. This, in itself, shows its willingness not only to co-operate with this office, but also its commitment to upholding proper journalistic ethics.

Whether the newspaper has done so in this case is the question, though.

Setting a precedent

Just when I thought that I have “seen it all” as the Press Ombud, I received this complaint – which, to the best of my knowledge, is the first of its kind.

It was to be expected, though. The naming of alleged sexual offenders and their identification by the media are very much in the fore of late – not only in South Africa, but also internationally.

While this specific case is not about alleged sexual offences (it is about gender-based harm), the fundamental question in this complaint is the same:

Do the media have the right to identify an alleged perpetrator of GBH (or of alleged sexual abuse such as rape, for that matter) prior to such a person having appeared in court?

Being the first of its kind, and in anticipation of receiving similar complaints in future, I am fully cognisant of the fact that this adjudication would set a precedent. I am especially aware of the importance to protect both freedom of expression (public interest) and what Krüger calls the “broader social interest in fighting the scourge of GBH and ensure that respect for the voices of the women involved is maintained”, as well of as the right of individuals to fair and responsible treatment by the media.

Krüger’s statement that it is a newspaper’s duty to report instances of gender-based harm is not in dispute – the question is how this should be done.

I now turn to the issues at hand.

Fikeni identified

General comments

Firstly, some comments in general before tying up the loose ends, applying them to this case, and coming to a conclusion.

These issues are:

· defamation;

· verification;

· public interest;

· a right of reply; and

· the media’s social duty.

Defamation

Even though the courts may (or may not) treat allegations of sexual abuse and those of GBH differently (in terms of identifying a complainant or an accused, that is), the following remark by Ampofo Anti in the above-cited article is material: “…journalists…must remember that they could be sued for defamation if they repeat (which includes retweeting and sharing material via social media) unverified allegations that a person is guilty of sexual assault”.

The first implication, therefore, is that the repetition of defamation is also defamation, and legal action could follow. The media should be mindful of that. I have stated this often, and I shall repeat it here: The media are not allowed to repeat an allegation just because someone has made it, as such a repetition could be libellous.

The argument that information is in the public domain (whether on social media or elsewhere) and that it therefore may be repeated, cannot hold water.

The media also need to be mindful of the fact that the defence against defamation is that a statement has to be true, as well as in the public interest.

Verification

In order to know whether a statement is reasonably true, though, and that therefore it would be reasonable to accept it as true and to identify an alleged perpetrator, there needs to be some form of verification – which is why Ampofo Anti correctly referred to the repetition of “unverified” allegations.

One implication is that the mere use of the word “alleged” would, in some cases, not redeem the media.

The question is what this verification should entail. Does it mean that the media should be absolutely certain that an allegation is true before they may publish it?

Surely, that cannot be the case – absolute certainty, if it exists, should be determined by the courts and not by the media. For example, if someone alleges that Pres Jacob Zuma has raped her, as has happened, it would be unthinkable that the media should be absolutely sure that the allegation was true before publishing it − as an allegation.

In any case, it is in the nature of an allegation that the truth of the matter has yet to be established – that is why it is called an “allegation”.

So then, if “verification” cannot mean “absolute certainty”, what does it entail?

While using the word “verification” several times, the Press Code does not define the term (it is therefore for this office to interpret the concept, until such time as its interpretation is overturned by the Press Appeals Panel, or otherwise defined by the Press Council).

Practices before the courts, however, may indicate a way forward.

In criminal cases, the benchmark for a verdict is “beyond a reasonable doubt”; this is lowered in civil cases to “on the balance of probabilities”.

“Beyond a reasonable doubt” means that there is no other logical explanation for a case; “balance of probabilities” boils down to a decision, based on all the relevant information, that something may be true (merely more than a 50% likelihood, as stated in several online articles).

Maybe it can best be described as “probably true” in the first case, and “possibly true” in the second one.

To expect the media to be sure “beyond a reasonable doubt” before publishing an allegation would, I contend, severely restrict freedom of expression. Again the Zuma example: Should the media be expected to first determine that there is no other logical explanation than rape before publishing such an allegation?

This leaves one option open – to expect the media to be satisfied that, on the balance of probabilities, based on the information at their disposal, the allegation may be true – and that they may therefore report that such an allegation has been made.

Note that “verification”, if it means anything, cannot entail less than a 50% probability.

To emphasise, the media should always present an allegation as an allegation, and not as fact (which does happen from time to time, especially in headlines).

Therefore, and in conclusion: I am expecting WV to have reasonably believed that it was justified to publish the allegation as an allegation and identify Fikeni in the process – not because it was absolutely sure that it was true, or that it had proof beyond a reasonable doubt, but because it was based on the balance of probabilities and therefore “possibly true”.

Public interest

The second leg of a defence against defamation is public interest, which is described in the Preamble to the Press Code as “information of legitimate interest or importance to citizens”.

This is a central matter – if there is little or no public interest in identifying an alleged perpetrator of GBH (or of sexual assault), there would be no justification for doing so.

Right of reply

Having given a subject the opportunity to reply cannot, on its own, justify the publication of an allegation and the identification of that person. The media should never lose sight of the possibility that someone may have been falsely accused – in which case publication would unnecessarily harm that person’s integrity and reputation, probably forever.

On the other hand, though, asking someone for comment can, and should, be seen as a form of verification – albeit not necessarily the only way of doing so.

The media’s social duty

While the media should always be on the lookout not to unnecessarily harm people (by publishing damning allegations and identifying the subjects of such reports), it is likewise unthinkable to silence the voices of those who have indeed been victimised, be it GBH or sexual assaults. It is not for nothing that the Preamble to the Press Code says that journalists should commit themselves to the highest standards – which inter alia means that they should reflect “a multiplicity of voices”, and “showing a special concern for…vulnerable groups”.

Assessing the issue: A third way

So now, back to the basic question: Do the media have the right to identify an alleged perpetrator of GBH or sexual abuse prior to such a person having appeared in court? Should the media protect an alleged perpetrator, or give preference to an accuser?

Or is this perhaps a false contrast?

I think it is. Those who were expecting a blank choice from me for the one and against the other would be disappointed, as I firmly believe that it depends on the context – which means that yes, there could be cases where identification may be justified, and others where it would not be the case.

So then, what would the “context” be in which identification would be justified – from a media ethical perspective, that is, and not necessarily so from a legal one (see my comment on this issue below)?

Let me start with what factors cannot, or should not, constitute a context for identification:

· The fact that someone was identified on social media, or elsewhere, can in itself not justify the media for following suit – if it was wrong to identify an alleged perpetrator on social media, it would likewise be wrong to do so for a publication (as the repetition of defamation is also defamation, and can by its very nature not be in the public interest);

· The right of reply – if an allegation is false and a subject denies it, the stigma will remain, despite any denial to this effect; and

· The fact that the accuser has identified herself or himself.

The factors which do matter – and let me stress that all of them should be met – are the following:

1. Public interest must outweigh the interest of the alleged perpetrator. This would depend on the profile the accused has in public – the higher, the greater public interest would be;

2. An allegation should, in the view of the media, be true on the balance of probabilities;

3. An allegation should be verified, if at all possible. In this regard:

3.1.1 Asking the alleged perpetrator would constitute an attempt at verification (but it would not necessarily be enough – also not if an accused declines to comment);

3.1.2 The more detailed the information provided by an accuser, the more justified the media would be to identify an alleged perpetrator; and

3.1.3 The more accusers there are, in the present and in the past, especially if they are independent of each other, the more justified the media would be to identify.

If these conditions are not met, the media are not at liberty to identify an alleged perpetrator.

Ethics vs. the law?

The nature of the beast at the office of the Press Council is not a legal, but indeed an ethical one. This does not mean, of course, that this office and indeed also the media should disregard the law – but it does mean that, if we do, we need to disregard it consciously and do so in favour of our ethical concerns.

There are enough clauses in the Press Code allowing for unlawful conduct, under extreme circumstances. Section 1.4, for example, states that news should be obtained legally – unless public interest dictates otherwise. If anything, this is an ethical justification for illegal conduct.

In such cases the media should be mindful of possible legal action against them – but not of an adverse finding by this office against them.

Back to Fikeni

Now for applying all of the above to the complaint at hand.

WV has passed the first hurdle quite comfortably. Given Fikeni’s role and status on campus, I have no hesitation in stating that the matter was in the public interest – at least on campus (the area in which WV operates).

As for verification, I take into account that the story cited two women with similar accusations – which, besides, were not vague at all. The one’s involvement was five years ago, the other one three years, and I therefore also believe that they objected independently of each other.

These women did not lay charges against Fikeni, which means that no verification from the Police was possible.

I also take into account that WV did ask Fikeni (twice) for comment.

Given these considerations, I believe that WV was justified to believe that the allegations might have been true on the balance of probabilities – which, of course, does not mean a verdict that Fikeni was in fact guilty.

In this case, then, I believe that the publication was justified in identifying the accused from a media ethical perspective – even if it might have opened itself to possible legal action.

Waiting for a court case

Krüger’s arguments in this regard are sound and need no repetition.

Also, I find it strange that Fikeni asks WV to withhold the story until the case comes to court, while at the same time admitting that no charges have been laid against him – which means that, as matters stand, no court case is forthcoming in the first place.

Amending the story

Given the fact that there were no new developments, I cannot find that WV was in breach of the Press Code for not reporting that fact.

It is up to WV to report “there is no news” if it wishes to do so – but this office cannot give such a direction.

Finding

The complaint is dismissed.

Appeal

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.